Order denying defendants' motion for summary judgement on wrongful death claim (count 1)

30 September 2002

(informal German summary)

Johnson, Alain Kartuzinski
And David Houghton, D.D.S., Defendants,

______________________/

ORDER DENYING DEFENDANTS' MOTION FOR SUMMARY
JUDGEMENT ON WRONGFUL DEATH CLAIM (COUNT 1)

        This cause came on to be heard on Defendants' Motion for Summary
Judgment on Wrongful Death Claim (Count1), with a certificate of service dated
May 24, 2002. This Motion was filed in the midst of a 35-day hearing on
Defendants' Omnibus Motion for Terminating Sanctions and Other  Relief. It was
believed by counsel for both sides that some of the issues in the Omnibus motion
would overlap the Motion for Summary Judgment as to the wrongful death count,
and that some of the witnesses who would be testifying would be witnesses who
had previously provided affidavits, depositions, etc. that would be used in the
Summary Judgment Motion. Accordingly, it was agreed that the transcript of the
Omnibus Motion would be filed, and counsel for all parties would be permitted to
refer to the sworn testimony, as well as exhibits from the Omnibus Motion
Hearing as well as all previously filed affidavits, sworn testimony, depositions
and the like to support their respective positions in the Summary Judgment
Motion. It is important that any reviewing court understand that testimony was
not taken on the Summary Judgement Motion, as that is generally prohibited.

With the above explanation as a backdrop, the Plaintiff served her Amended
Response to Defendants' Motions for Summary Judgment on

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        Wrongful Death and Negligence (Counts I and V) on July 20, 2002. The
Defendants had also filed a Motion for Summary Judgement as to Count V, the
Negligent Survival Claim and the plaintiff combined her response as to both
motions. Since the Defendants had filed their Motion in the middle of the
hearing,
they were, by agreement, permitted to file and did file Defendants' Final Brief
on Issue of Sham Pleading, and Final Reply on Motion for Summary Judgment on
Wrongful death Count, with a certificate of service of August 9, 2002. The
Defendants had alleged as part of their Omnibus Motion for Terminating Sanctions
and Other Relief that Count I of the complaint was a sham pleading. They
combined this aspect with their Final Reply to the Summary Judgment Motion.
Since the Defendants' Response was so extensive, the Plaintiff was given an
opportunity to respond, which she did by serving her Response to Defendants'
Final Replies to Plaintiff's Response to Summary Judgment on Negligence and
Wrongful Death Claims on August 19, 2002. It was agreed this court could rule on
this motion for summary judgment without further argument. This order follows.

         A motion for summary judgment may only be granted if the pleadings,
depositions, answers to interrogatories, and admissions on file, together with
affidavits, if any, show that there is no genuine issue as to any material fact,
and that the moving party is entitled to a judgement as a matter of law. Fla. R.
Civ. P. 1.510(c), and cases too numerous to cite. The burden is on the
Defendants, as the moving party herein, to demonstrate conclusively that the
Plaintiff cannot prevail. St. Pierre v United Pacific Life Insurance Company,
644 So 2nd 1030 (Fla. 2d DCA 1994); Snyder v Cheezem Dev. Corp., 373 So 2d 719
(Fla. 2nd DCA 1979). Not only must there be no genuine issue of material fact,
but the court must draw every possible inference in favor of the party against
whom the summary judgment is sought. Moore v. Morris, 475 So 2d, 666 (Fla.
1985). Even if the facts are uncontroverted, the entry of a summary judgment is
erroneous if different inferences can be drawn reasonably from the facts.
Staniszesky v. Walker, 550 So 2d 19 (Fla. 2d DCA 1989). If the record reflects
the existence of any genuine issue of material fact or the "possibility of any
issue, or if the record raises even the slightest doubt that an issue might
exist, summary judgment is improper:. St. Pierre @ 1031, emphasis
mine. A summary judgment should not be granted unless the facts are "so
crystallized that nothing remains but questions of
law." Moore @ 668.

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        Applying this rather basic law to Plaintiff's wrongful death claim, it
would seem that no summary judgment can be granted. There are virtually no
issues of material fact that are not  controverted, including evidentiary as
well as ultimate facts. Did the Defendants, or any of them, commit a wrongful
act or acts of either commission or omission? There is no agreement on this
issue. What was the cause of Lisa's death? Certainly this is a hotly contested
issue, and has been since the case began. If the Defendants, or any of them,
committed wrongful acts that caused Lisa's death, what is the extent of each
defendant's wrongdoing, were they negligent, grossly negligent, culpably
negligent, or did they intend to cause her death? This is certainly a contested
issue, and is the real issue in Defendants' Motion for Summary Judgment on Count
I.

        The crux of the Defendants' Motion can be found on pp. 1-2 of their
Motion. "Because there are no facts to support plaintiff's intentional murder
claim, and therefore, no genuine issue as to any material fact, the defendants
are entitled to judgement as a matter of law on Count I of the plaintiff's Fifth
Amended Complaint." It is this aspect of the Defendants' Motion that will be
dealt with in this Order. The issue of whether or not this is a "sham pleading",
because the Defendants allege the Plaintiff had no evidence to join David
Miscavige as a defendant, or because there is an allegation in the complaint
that the decision to let Lisa McPherson die was made through the Sea org, by
David Miscavige, will be dealt with
in a subsequent order on the Defendants' Omnibus Motion for Terminating Sanction
and Other Relief. Since David Miscavige is no longer a Defendant, what the
Plaintiff will have to prove is that the Defendants, or any of them, "in total
and conscious disregard for the rights of Lisa McPherson, willfully,
intentionally, wantonly, and maliciously toward the last days of her life
decided to let Lisa McPherson die, ..rather than save her life..." P 34 of
Plaintiff's Fifth Amended Complaint. The rest of P 34 is either an explanation
of terms, the reason David Miscavige was added to the complaint as a Defendant,
surplus or why this happened, i.e. the motivation for why this happened.

         The Plaintiff does not have to prove that an end cycle order was given.
Nor does she have to prove that David Miscavige, or any other person, ordered an
end cycle. She doesn't have to prove that David Miscavige did or did not do
anything, as he is no longer a Defendant in this case. She does not have to
prove why, i.e. what was each Defendants's motive. She does

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have to prove that the Defendants' intentional actions or inaction's caused Lisa
McPherson's death, and that damages are appropriate against the Defendant(s),
individually or collectively, and what the amount of those damages are. The
Plaintiff, in her Amended
Response to Defendants' Motion for Summary Judgment on wrongful Death and
Negligence suggests that her complaint alleges not only intentional action or
inaction on the part of the Defendants, but also conduct that would allege
culpable negligence on the part of the Defendants. That is far from clear in the
court's mind. The Plaintiff seems to know how to plead culpable negligence, as
can be seen from every other count of the complaint. Count II- intentional and
Reckless Infliction of Emotional Distress (Outrage), alleges @ 39, "These
Defendants, after assuming responsibility for her well being, intentionally,
willfully, wantonly, maliciously, and in reckless and conscious disregard of the
rights of LISA
MCPHERSON, engaged in the following outrageous behavior towards her:", emphasis
mine. Count III-False Imprisonment
alleges @ 44, "Defendants willfully, intentionally, wantonly, and maliciously
and in reckless and conscious disregard of the rights and safety imprisoned LISA
MCPHERSON...", emphasis mine. Count IV-Battery alleges @  48,"[T]hese
Defendants willfully, intentionally, watonly, and maliciously in reckless
disgregard of the rights and safety of LISA MCPHERSON.." committed battery upon
her, emphasis mine. Count V- Negligence alleges @ 53, "The above actions by
SCIENTOLOGY were grossly negligent, and in reckless and conscious disregard for
the safety, well being, and rights of LISA MCPHERSON...", emphasis mine. Each of
Counts 2-5 of the Plaintiff's complaint allege culpable negligence as well
as intentional conduct on the part of Defendants. Count I, however, does not
allege that the actions of the Defendants were done "with reckless and conscious
disregard" for the rights, safety, well-being, etc. of Lisa McPherson, but only
the "total and conscious disregard" of the rights of LISA McPherson. It seems to
this court that the plaintiff deliberately omitted any culpable negligence, i.e.
reckless disregard, from Count I of her complaint.

        The Plaintiff indicates in her Amended Response several times that Count
I alleges "intentional medical neglect:. Allowing a physically or mentally
disabled adult to die through intentional medical neglect is indeed a felony in
the State of Florida. See F.S.  825.102(1995). But that statute also provides
for the felony if it was done by "culpable negligence." In 1995, a death
occurred as a consequence of and during the

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commission of that felony, whether done "knowingly, willfully, or by culpable
negligence" could be murder. In 1995, it would be a murder in the third degree,
although subsequent to the time Lisa died, murder in the first degree was
amended to include this crime as one of the underlying felonies subjecting one
to first degree murder charges. Thus, when the Defendants complain that the
plaintiff and her counsel stated at various times, in pleading's and otherwise,
that this was a case of the murder of Lisa McPherson, there is basis for the
Plaintiff's statement, even if the death was not premeditated, but rather as the
consequence of and during the commission of the intentional abuse or medical
neglect of Lisa McPherson, if she was a disabled person, which is a question of
fact for the jury.

        Did the Plaintiff think she had alleged culpable negligence in her
complaint? While such thoughts would be irrelevant as to whether she had in fact
pled culpable negligence, the Defendants, both in their Motion for Summary
Judgement and in their final Reply on the motion, refer this court to a
discussion between Mr. Dander and Judge Moody as a hearing to dismiss the Fourth
amended Complaint which had similar language in the wrongful death count (Count
I of the Fourth Amended Complaint); 36, Fourth Amended Complaint, "...[Y]et it
was decided on or before  December 5, 1999 (sic) by the Defendants and the
hierarchy to do nothing to save the life of LISA MCPHERSON." ,emphasis mine. The
Defendants, on pp. 2-3 of their Motion, and on p.32 of their Final Reply say,
"At a hearing on July 22, 1999 on a Motion to Dismiss the Fourth Amended
Complaint, when questioned about these allegations, Mr. Dandar 'asserted' (in
Motion); 'emphatically insisted' (in Reply) to Judge Moody that the wrongful
death count did not rest upon any allegation of negligence, but rather was based
exclusively on an allegation of intentional murder, even in the face of Judge
Moody's suggestion that he would be unable to prove it:

         MR. DANDAR: The wrongful death count is pursuant to an
         order from above. They made a decision, "Do not seek
         medical help. Let her die. She is better dead than going to
         the press or going back to Morton Plant Hospital. We have
         too many questions to answer."

         THE COURT: All right. Well, putting aside for the moment
         the manner in which you intend to prove Count 1, the fact is
         that Count I is an allegation of negligence with resulting
         personal injury which caused death.

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         MR. DANDAR: It's intentional conduct actually. It's not
         negligence. There is no negligence in here except in this
         count [i.e., the negligence survival count]." Transcript, p 53,
         emphasis in original.

        What the Defendants failed to include in both their original Motion and
their Final Reply is the very next inquiry by the
Court and Mr. Dandar's response:

         THE COURT: So Count I does not---you are not
         incorporating negligence into Count I?

         MR. DANDAR: We call it culpable negligence. We call it
         gross negligence, and we call it willful and intentional and
         malicious. Just to be sure, let me turn to the ---, emphasis
         mine.

        After this, the court, without waiting for Mr. Dandar, goes back to
discussing Count VII, the negligent survivor count, and that is the end of this
discussion. Thus Mr. Dandar and the Plaintiff must have thought they pled
culpable negligence as well as intentional conduct. Again, whether he did or not
is what is in question, not what he or the Plaintiff thought they alleged.
However, the Defendants should have included the additional language to paint
the whole picture of the Plaintiff's intent.

       Since there is a serious question in my mind as to whether or not the
Plaintiff alleged a homicide by culpable negligence, or a homicide by abuse or a
neglect of a disabled person by culpable negligence, I will concentrate in this
order only on whether or not there is any evidence, even the "slightest" amount,
to show  intentional conduct or omission on the part of any or all of the
Defendants. I am not going to analyze all the evidence, only so much of it that
shows there is some evidence in the record to support intentional conduct or
omission on the part of the
defendants. Once I have shown that "slightest" amount of evidence, it is
unnecessary for me to show more to decide the Defendants' Motion. Clearly, if
there is evidence of intentional actions or omissions on the part of the
Defendants, there is evidence of culpably negligent actions or omissions, a
lesser burden of proof.

       All three of Plaintiff's forensic pathologists opine that the manner of
Lisa Mcpherson's death was a homicide, and not an accident. There are four types
of homicide in Florida: (1) murder in the first degree, a death, coupled

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with preditation, or as a consequence of and during the course of committing
certain felonies, such as rape, kidnapping, armed robbery and the like, (2)
murder in the second degree, a death by an act imminently dangerous to another
and evincing a depraved mind regardless of human life, (3) murder in the third
degree, a death occurring as a consequence of and during commission of a felony
not included in those constituting first degree murder, such as grand theft, or
in 1995, abuse or neglect of a disabled adult, and (4) manslaughter, a death
caused by an act, a procurement, or culpable negligence. Since Lisa McPherson's
death, the manslaughter statute has been amended to specifically include death
caused by abuse or neglect of a disabled adult. And as previously stated, the
first degree murder statute has been amended to include this felony as one which
underlies a first degree murder charge.

       In this court's opinion, the Plaintiff, in her complaint, in accordance
with 1995 law, has alleged a wrongful death either with premeditation (first
degree murder), or as a consequence of and during the commission of the felony
of abuse or neglect of a disabled adult, not by alleging culpable negligence,
but by intentional abuse or neglect, (third degree murder ), or by a wrongful
act that was neither premeditated nor imminently  dangerous to another and
evincing a depraved mind regardless of human life, (manslaughter by an act) The
Plaintiff suggests she has also alleged manslaughter by culpable negligence, or
abuse or neglect of a disabled adult by culpable negligence, but in this court's
opinion, that is tenuous. Thus any analysis of culpable negligence, as easier
burden of proof for the Plaintiff, will not be addressed further in the analysis
of the evidence.

       Intent is generally a question for the jury, and a summary judgment is
generally no appropriate when intent is the issue
of a fact or question. See MHI, Inc. v. DeCamp Realty, Inc. 726 So 2d 305 (Fla.
4th DCA 1999); Wolofsky v Waldron, 526 So 2d 945 (4th DCA 1988); American
International reality, Inc v. Southeast First National Bank of Miami, 468 So. 2d
383 ( Fla. 3dDCA 985); State v Wise, 464 So. 2d DCA1245 (Fla. 1st DCA 1985):
Nesbitt v Auto-Owners Insurance Company, 390 So 2d 1209 (Fla. 5th DCA 1980);
State v. J.T.S., 373 So 2d 418 ( Fla. 2d DCA 418). Normally, criminal cases
would not be stated in civil case, but as stated in J.T.S. @ 419, "proceeding
under Rule 3.190 (c)(4) (the Criminal Rule of Procedure involved in the case) is
the equivalent of a civil summary judgment proceeding..." Parenthetical mine.

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       The intent with which an act is done is not only usually a jury question,
and not one for the court in a summary judgment motion, but that would be
particularly true in a case such as this where evidence might directly prove
intent has been withheld by the Defendants. Where evidence such as that withheld
in this case is not forthcoming prior to trial, the Plaintiff can resort at the
trial to arguing adverse inferences that the withheld evidence would be
unfavorable to the Defendants, and perhaps even shift the burden of proof in
some instances. Public Health Trust of Dade County v. Valcin, 507 So. 2d 596
(Fla 1987); New Hampshire Insurance Company Inc. v. Royal Insurance Company, 559
So. 2d 102 (4th DCA 1990). The inference that this court must draw in any
summary judgment motion is every possible inference in favor of the Plaintiff,
the party against whome the summary judgment motion is sought. Moore v. Morris,
475 So 2d 666 (Fla. 1985). Thus, the
appropriate inference this court must draw in this Motion for Summary Judgement
is that the missing caretaker reports, the
missing information in Lisa's pc folders, and all the other missing information
is unfavorable to the Defendants, including unfavorable regarding the Defendants
' intentions. If the missing caretaker reports near the time of Lisa's death
indicated that she was critically ill, in need of medical attention, or that she
appeared dehydrated, comatose, or any of the things that the Plaintiff's doctors
say should have been obvious, particularly to Defendant Johnson who was,
although unlicensed in Florida, medically trained, and a previously licensed
physician, the failure of the Defendants to obtain necessary care for Lisa could
very easily progress from a negligent omission to an intentional one. In any
event, this is clearly a question of fact to be resolved by the fact finder-the
jury.

       The Defendants would respond that the caretakers are able to state what
was in their reports, or that Defendant Kartuzinski, can state what was in the
reports he received, and further, that Kartuzinski, Johnson and Houghton can
state what their intent was, However, credibility of a witness is clearly a
question for the jury, not this court. The Defendant church suggests that it
would violate Florida Statute  90.611 to let the jury hear about any
Scientology religious belief which purportedly "encourages Scientologists to
commit perjury or make false statements" as an issue bearing on the Defendants'
credibility. Defendants Reply, p 67. I need not answer that issue here, as it is
not necessary to do so. Suffice to say that the
Defendant Kartuzinski has admitted in his filed, sworn testimony before the
state attorney, and in his deposition that he lied to police who were
investigating this case in order to protect himself and the Defendant Church.

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Additionally, his own testimony, given at various times, is not always
consistent. And there are inconsistencies between his
testimony and that of the other witnesses. As to Janis Johnson, her testimony is
so different from the Plaintiff's experts, other caretakers, and Dr David
Minkoff, the Scientologist doctor, whom the Defendants insisted see Lisa
McPherson, even though he was a 45 minute drive away, and he testifies in his
deposition that he told the Defendants to take Lisa to the emergency room, the
closest of which was just a few miles away, that either her testimony is
erroneous or Dr. Minkoff, and other witnesses' testimony is erroneous. As to the
other caretakers, particularly those who were taking care of Lisa during the
last, and the most critical days of her life, their testimony conflicts with
each other, with that of other witnesses, and within their own various testimony
to the police. the state attorney and deposition. This will all have to be
sorted out by the jury. Who is telling the truth is not a question of law, but a
fact for the jury. And while it is not for any party's experts to testify
whether a witness is telling the truth, when asked in his deposition, by the
Defendants' counsel, if the caretakers were telling the truth when they say this
or that, in their reports, depositions, etc., Dr. Werner Spitz says as to some
of their testimony and reports that he does not believe the caretakers are
telling the truth. Spitz Deposition, June 14 and 15 2001 @ pp 54-55, 101,
397-400. The jury could conclude the same as Dr. Spitz did.

         In summary, what each of the Defendants' intent was is a question of
fact for the jury, not this court. On the this basis
alone, no summary judgment can be granted at to Count I.

         The Defendants discuss what the Plaintiffs' experts stated in their
depositions and affidavits to attempt to establish that the Plaintiff can prove
no issue of intentional wrongdoing. They artfully pick and choose their passages
from the depositions. However, the Defendants are incorrect for several reasons
in their conclusion that no expert of the Plaintiff supports the Plaintiff's
assertions that the Defendants' actions, or inactions, in failing to obtain
necessary medical case for Lisa was intentional. First, these experts cannot
possibly know what either Kartuzinki's, Johnson's or Houghton's intent was. it
is doubtful if any of them thoroughly read Kartuzinski'', Johnson'' and
Houghton'' deposition, or various other sworn and unsworn statements. They are
probably unaware that Kartuzinski has admitted he lied on at least two occasions
as to his
involvement. They could not know what he, or any Defendant knew from the
caretaker reports for the last days

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of Lisa McPherson's life, because the Defendants have with one exception not
produced these reports.

          Second, the testimony of the forensic doctors, assuming it is objected
to by either side, as to their opinions of "second degree murder", "intentional
medical neglect", or "gross negligence", is inadmissible. they not only don't
have the knowledge of all the necessary facts in this case to even begin to
suggest what  someone's intent was, a prerequisite for any ultimate issue
testimony, but also this type ultimate issue testimony is generally
inadmissible, despite what is otherwise stated in F.S.  90.703. See Ehrhardt,
Florida Evidence  703.1., and cases cited therein which disallow expert's
opinions that something was done from "negligence", "gross negligence"
"premeditated", "depraved mind" and the like. Although there are many reasons
for excluding testimony, such as invading the province of the jury by allowing
an expert to tell them how to decide the case, the "most significant reason for
exclusion of the opinion testimony is not due to the issue upon which the
witness is testifying, but rather that there can be no assurance that the witnes
s is using a term or legal expression in the
same sense that the statutes and appellate decisions have defined the critical
words of art." Erhardt. "The Conflict Concerning Expert Witnesses and Legal
Conclusions", 92 W. V. L. Rev. 645, 660 Spring, 1990. See also Smith v. Martin,
707 So 2d 924 (Fla. 4th DCA 1998).

          The Defendants readily recognize that this is true when the expert's
testimony is not to their liking. See Defendants' Objection to Exhibits relied
upon in Plaintiff's Opposition to Motion for Partial Summary Judgment, dated
September 10, 2001, wherein they objected to the affidavit of Mark J. Mills,
J.D., M.D., the Plaintiff's psychiatrist expert. The specific testimony they
asked the court to exclude from "consideration for any purpose on their
motional distress summary judgment motion" was, in part, Mill's "opinion
testimony apply a legal standard to a set of facts,  impermissibly relaying
information that is within the common understanding of the jurors and
impermissibly telling the jury how to decide the case." Defendant's Objection, @
p.7, emphasis mine. What the Plaintiff'' expert affidavit said, and what the
Defendants wanted excluded was that portion of Davis' Affidavit that said,
"those in charge of Ms. McPherson's stay at the hotel acted recklessly, with a
deliberate disregard of Ms. McPherson.: Id @ p7, emphasis mine. in fact they, as
I did above, cited Smith v Martin, 707 So. 2d 924, 925 ( Fla. 4th DCA 1998),
which states that it was error for the trial court to admit "the conclusory
opinion of appellant's expert attributing

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gross negligence to the appellant." The Defendants cannot have it both ways.
Their argument in their objections to Mills' testimony that the court should not
consider Mills' ultimate fact opinion in deciding their summary judgment motion
as to emotional distress is correct. Their argument in this motion suggesting,
the opinions of Plaintiff's experts should be used by this court to grant their
summary judgment is incorrect. All the attorneys are cautioned to not argue a
position in one motion and then argue the reverse of that position in another
motion, unless the court disagreed with their first argument.

         Dr. John Coe opines, "I would classify the mode of death as homicide by
reckless abandonment, neglect, or whatever. Not a-not a first degree homicide,
but a second degree homicide." Coe Deposition, November 16, 2001 @ p. 457,
emphasis mine. I doubt that Dr. Coe, not a Florida native, has any idea of what
second degree murder is in the state of Florida. Nor would I allow him to tell
the jury that what happened to Lisa McPherson was a second-degree murder. that
would invade both my perogative to properly instruct the jury, should it become
necessary, on second degree murder, and the jury's perogative to decide the
case. However, if I were to allow Dr. Coe's opinion, that what occurred in this
case was a second degree murder, to be considered by me or by the jury, it would
not help the Defendants' case in this motion or at trial. But
this testimony is improper. A medical examiner never testifies beyond the manner
of death being a homicide. The degree of homicide is for the jury.

          Dr. Calvin Bandt says in his filed affidavit, "[T]he manner of death
of Lisa McPherson is classified as homicide, as a result of the intentional
neglect of medical care." In his deposition, he  eiterates this but says, "It
was the neglect that was intentional I do not believe they intended to cause her
death." See Brandt Affidavit and Brandt deposition, June 5, 2001, pp 778-781,
emphasis mine. This confusing testimony appears to suggest Murder in the Third
Degree, intentional neglect of a disabled adult resulting in death, or
manslaughter by intentional act. Dr. Brandt, like the other forensic experts for
both the Plaintiff and the Defendant, cannot possibly know what the intention of
the Defendants, or for that matter the caretakers, was. And, he will not be
allowed to testify as to this, any more than the other experts can. intent is a
state of mind, not always capable of direct and positive proof. As stated
previously in this Order, intent is a question for the jury, after hearing all
the
testimony and see all the evidence. None of the Plaintiff's or Defendants'
experts can tell the jury what they think the

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Defendants' intent was. That decision is for the jury. On this issue, what Dr.
Bandt says is quite correct, Q. As a medical examiner, are you - do you render
opinions as to whether or not a suspect  intended to kill another? A. No. Q. Who
renders that opinion in your practice? A. That is left up to the County
Attorney. Or the Grand jury, I might add, usually the grand jury." Bandt
deposition, pp. 829-830. While the grand jury makes the original assessment
pre-indictment of what degree of homicide a particular case is, the petit jury
decides this issue at a trial. Likewise, in a civil trial, the jury will decide
whether Defendants' actions, or inactions were wrongful, and if so, whether the
wrongful actions or inactions were
intentional or not.

          Dr. Werner Spitz says the manner of death was a homicide, and when
asked what that was based on, he said, "That this is gross negligence what
occurred here. Spitz Deposition, June 15, 2001, @ p. 382, emphasis mine. Again,
I do not know if he was talking about the legal definition of gross negligence,
or if he even knows what the legal definition of gross negligence is in the
State of Florida. Frankly, it is doubtful that "gross negligence" actions or
inactions even constitute a homicide in the State of Florida. Culpably negligent
or intentional actions or inactions do. Additionally, it appears that he does
believe that the acts of the caretakers and/or the Defendants might well have
been intentional. For example, later in the deposition, when being questioned
about what he relied on for his opinion that the manner of death was a homicide,
he says
"If she was given an IV like she's supposed to, if she was taken to a hospital
and treated, she wouldn't have had that embolism, she wouldn't have had the
dehydration. She wouldn't have had any of the findings that she had. She
wouldn't have looked the way she does. She wouldn't have been admitted back to
the hospital when she arrived there, dead, neglected, and unkempt, and obviously
somebody - somebody who wasn't taken care of..." Spitz, @386. Later, when the
Defendants' attorney was trying to get him to say that there was no testimony
that anyone was intentionally trying to harm Lisa McPherson at the Ft. Harrison
Hotel, he said, "Testimony? No I don't know of any testimony along that line.
You mean somebody would say 'I deliberately did this? No, I didn't read that, I
didn't find that, nobody said that." Spitz, @394. And he is correct - no one did
say that. Whether that testimony is true or not will have to be decided from all
the testimony and evidence, both
direct and circumstantial, including all inferences that can be drawn from the
evidence, or lack thereof, such as the missing reports, pc folders, etc. And the
decision will be made by the jury. When Dr. Spitz was asked whether or not he
"believed" that someone was trying to hurt Lisa

                                                 13

McPherson at the Ft. Harrison Hotel, he says, "Well no, I'm not convinced about
that. I'm not convinced about that. Unless they were following orders." The Dr.
was cut off, but soon asked again, after much legal harangue, "Q. "You don't
believe, do you, that anyone at the Fort Harrison Hotel, any of the
Scientologists, were intentionally trying to hurt Lisa McPherson, do you?" A.
"I'm not convinced" Q. "What do you mean you're not convinced?" A. "I'm not
convinced that they were not either told to deliberately hurt her or told to
keep her there contrary to her wishes or what the reason is that during the
obvious deterioration, during the seventeen days, from day to day getting worse,
to the point where she is unconscious for several days...," The Dr. is again cut
off, and asked Q. Right? Right?" The Dr., after more legal harangue, says A.
"No, this is not a presumption. You - you have a patient that is  obviously
deteriorating over a period of seventeen days, with a terminal period of several
days of unconsciousness or, if you wish, subconsciousness with a time when she
is obviously dead, at least that is one likely scenario, and no one has the
gumption of saying "Wait a minute, I'll take her - I'll take her in my car and
drop her
off in the hospital two minutes down the road." Spitz, @ 394-397, emphasis of
mine. The admissible testimony of Dr. Spitz, not his inadmissible conclusion of
"Gross Negligence," will also defeat the Defendants' summary judgment of Count
1.

          All three of the Plaintiff's expert forensic pathologists opine that
Lisa McPherson died of either severe dehydration or a  pulmonary embolism caused
by severe dehydration. They all opine that Lisa would have  deteriorated over
her 18 day stay, that she had lost weight, had sunken eyes, and other obvious
signs of dehydration. They state that she would have been in euremic coma during
the last several days of her life. They do not believe she was walking around
those last few days as described by some of the caretakers (although some said
otherwise). They said while she could have been aroused for feeding, she would
have otherwise have been somnolent. And while this disagrees with what
Defendants' counsel believes their testimony says, I believe the totality of
their testimony shows that they believe her critical medical condition should
have been obvious to a lay person long before the day she was taken to the
hospital, where she arrived dead, and certainly would have been obvious to a
medically trained person like Defendant Johnson, who was the person responsible
for periodically discussing Lisa's medical situation with Defendant Kartuzinski.
See, for example, Bandt deposition, p. 780-781; Coe deposition, p. 236;

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Spitz deposition, pp. same as above. Even on the last day of Lisa's life, the
Plaintiff's experts believe that if either Defendant, Johnson, who should have
realized that Lisa was critical, and reported that condition to Kartuzinski who
was in charge, had called 911, or taken Lisa immediately to the emergency room
at a hospital a few miles and 5 minutes from the hotel/church facility, rather
than to a hospital in another city, 45 minutes or more away, her life could have
been saved with an IV and other medical treatment.

         If the jury believes the Plaintiff's doctors testimony, could they
determine that both Kartuzinski and Johnson knew of Lisa's critical condition,
and that their failure to seek immediate medical treatment for her at the
closest medical facility, was intentional, rather than negligent or culpably
negligent? The answer is yes. This is a jury question.

          I could analyze other testimony, affidavits, exhibits introduced at
the Omnibus Motion for Terminating Sanctions' hearing, etc., but that is not
necessary to decide that the Defendants' Motion for Summary Judgment on Wrongful
Death Count. In this court's opinion, we are past that "possibility," or
"slightest doubt" test in the law of summary judgments that the Defendants acted
intentionally when they failed to obtain necessary medical care for Lisa
McPherson. Accordingly, no further analysis is necessary, and no further
analysis will be done. This court will analyze Mr. Prince's testimony and
affidavit in her Order on Defendants' Omnibus Motion for Terminating Sanctions
and Other Relief.

          Several observations, however, will be made: First, motive has never
been a necessary element of proof in a homicide. Matthews v. State, 177 So. 321
(Fla. 1937), and other cases are too numerous to cite. Therefore, all the
"Why's" contained in the Plaintiff's complaint are surplussage, and unnecessary
to prove. That is not to say the Plaintiff is prohibited from attempting to show
a motive. It simply isn't a necessary item for proof for the jury to be allowed
to decide this case. Thus, the "why's" in the complaint - i.e. the motive - need
not be examined in this order.

         Second, the allegations regarding Mr. Miscavige in the complaint were
necessary to allege to bring him into the complaint as a Defendant, as he was
not present when the actions or inactions of the other Defendants occurred. If
he had been served and was still a Defendant, it would have been necessary to
prove at least some of the allegations regarding him for

                                                 15

the Plaintiff to escape a summary judgment or a directed verdict as to Mr.
Miscavige. However, since he is no longer a Defendant, the Plaintiff having been
unable to properly serve him, the Plaintiff does not need to prove he did
anything, and the Defendants do not need to establish that he did not do
anything.

          Third, the Defendants suggest that I must resolve 5 evidentiary issues
before declining this motion. Defendant's Final
Brief to the Issue of Sham Pleadings, and Final Reply on Motion for Summary
Judgment on Wrongful Death Count, pp. 49-69. That is unnecessary to a resolution
of this motion for summary judgment, and I decline to do so. If the Defendants
either do not prevail on their Omnibus Motion for Terminating Sanctions and
Other Relief, or if those issues are not otherwise resolved in that Order, these
issues can be resolved at a hearing set for that purpose.

         Fourth, Dr. David Houghton, D.D.S and his role in the alleged wrongful
death, seems to have been "lost in the shuffle" by both counsel for the
Plaintiff and for the Defendants, including his own individual counsel. I have
not seen any discussion of whether or not he is in any way involved in the
wrongful death count. The filed material in this case is so voluminous, I would
have to spend weeks scouring the record to determine his involvement, if any.
Therefore counsel for the Plaintiff is directed to file a brief showing me sworn
testimony, depositions, affidavits, etc. where there is any evidence that would
allow the Plaintiff to continue to have Dr. Houghton remain as a Defendant in
Count 1. This pleading must be filed within 10 days of the receipt of this
order. In the event that such a pleading is filed, the attorney for Dr. Houghton
may have 5 days to respond to the pleading. These briefs should not repeat what
has been previously submitted with this motion but should
relate specifically to the evidence, if any, as it relates to Dr. Houghton. If
no pleading is filed by the Plaintiff, a summary
judgment on Count 1, as to Dr. Houghton, will be granted.

          For all of the above reasons, it is

          ORDERED AND ADJUDGED that the Defendants Motion for Summary Judgment
on the Wrongful Death Count as to the Defendants Kartuzinski, Johnson, and the
Church of Scientology, Flag service Organization, Inc. is denied. It is further

                                               16

         ORDERED AND ADJUDGED that the court takes the Motion under advisement
as to the Defendant, Dr. David Houghton, awaiting pleadings mentioned above, if
any are filed. If pleadings are filed, the court will enter an additional order.
No hearing will be necessary unless directed by this court. If no pleadings are
filed, the Motion for Summary Judgment on Count 1 will be granted as to the
Defendant, Dr. David Houghton.

          ORDERED AND ADJUDICATED that the Defendants' request for monetary
sanctions and attorneys fees is denied.

         DONE AND ORDERED in St. Petersburg, Pinellas County, Florida this 30
day of September 2002



                                             Susan F. Shaeffer, Circuit Judge



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Life and Death of Lisa McPherson